George Washington and the Origins of Executive Privilege
MARK J. ROZELL
In April 1998 the independent counsel Kenneth Starr gave a nationally televised speech on executive privilege. At that time Starr was embroiled in a legal battle with the Clinton White House over multiple claims of executive privilege to prevent the Office of the Independent Counsel from securing the grand jury testimony of key presidential advisers. Starr insisted that he needed the testimony of these advisers in order to properly conduct his investigation into allegations that the president may have committed perjury or tried to cover up illegal White House actions during a scandal. The Clinton White House insisted that the doctrine of executive privilege protected key advisers from having to testify about matters germane to the official duties of the president.
In his speech Starr did not directly address the details of his legal battle with the Clinton White House. Rather, he focused on the issue of the proper breadth of this constitutional power, which grants the president and key advisers the right to withhold information from those with compulsory power--usually Congress, but also the courts or, more specifically in this case, an independent counsel--when it is in the public interest to do so. Unlike some legal scholars, 1 Starr did not dispute the legitimacy of executive privilege. He acknowledged that executive privilege exists, but with substantial limits. Like other constitutional powers, he correctly pointed out, executive privilege must be balanced against other governmental needs.
To substantiate his argument that executive privilege must be a limited power and subject to the public interest standard, Starr invoked the actions of the nation's first president, George Washington, as the model for understanding the proper use of this presidential power. Washington recognized that presidential secrecy sometimes is a necessity and that the power to com-